The University of New Hampshire Law Review Volume 14 Number 2 Article 1 May 2016 Heart of Darkness: New Hampshire Campaign Finance Law Since Citizens United Jay Surdowski Partner at Sulloway & Hollis, P.L.L.C., Concord, NH Follow this and additional works at: https://scholars.unh.edu/unh_lr Part of the American Politics Commons, and the Law and Politics Commons Repository Citation Jay Surdowski, Heart of Darkness: New Hampshire Campaign Finance Law Since Citizens United, 14 U.N.H. L. REV. 227 (2016), available at http://scholars.unh.edu/unh_lr/vol14/iss2/1 This Article is brought to you for free and open access by the University of New Hampshire – Franklin Pierce School of Law at University of New Hampshire Scholars' Repository. It has been accepted for inclusion in The University of New Hampshire Law Review by an authorized editor of University of New Hampshire Scholars' Repository. For more information, please contact [email protected]. Heart of Darkness: New Hampshire Campaign Finance Law Since Citizens United * JAY SURDUKOWSKI INTRODUCTION............................................................................................ 227 I. CAMPAIGN FINANCE SUMMER ................................................................. 230 A. The Vehicle for Campaign Finance Rulings: Attorney General Decision Letters ..................................................................................................... 230 B. The Summer of 2014: Serial Complaints and Attorney General Decisions................................................................................................. 233 1. Republican State Committee v. Hassan I and II ............................. 233 2. Republican State Committee v. Plumbers and Steamfitters Local Union 131 ........................................................................................... 243 3. Republican State Committee v. Hassan III..................................... 244 4. New Hampshire Democratic Party v. Havenstein.......................... 245 II. LIGHT IN THE DARK: SENATE BILL 120’S REFORMS .............................. 250 A. The Legal Context: The Rise of Outside Spending in New Hampshire............................................................................................... 250 B. The Gay Marriage Repeal Fight of 2012 ........................................... 251 C. The 2012 Governor’s Race ................................................................ 255 D. Outside Spending in 2014.................................................................. 258 E. SB 120: An Effort to Shine a Light on “Dark Money” ...................... 260 F. SB 120: Is it Working? ....................................................................... 261 III. CONCLUSION ......................................................................................... 263 INTRODUCTION “We penetrated deeper and deeper into the heart of darkness.”1 Perhaps one of the greatest election law paradoxes in the United States is that New Hampshire—the First in the Nation Presidential Primary State—a State whose citizenry famously prides itself on political engagement—is also a State with some of the most complicated and sporadically enforced * Jay Surdukowski, J.D., the University of Michigan Law School, is a partner at Sulloway & Hollis, P.L.L.C., in Concord, New Hampshire where his practice focuses on litigation, including the defense of medical negligence and wrongful death cases. He also counsels corporations, political committees, and campaigns. In 2014, Surdukowski served as counsel to Governor Maggie Hassan’s reelection campaign. 1 Joseph Conrad, HEART OF DARKNESS (1899) 228 UNIVERSITY OF NEW HAMPSHIRE LAW REVIEW Vol. 14, No. 2 campaign finance laws in any jurisdiction.2 The post-Citizens United3 world, wherein vast quantities of unlimited and anonymous corporate and individual donations by some of the wealthiest citizens are freely flowing (so-called “Dark Money” because the identities of donors are shielded by law4), has only exacerbated the loud creaks of the rickety campaign finance law firmament in New Hampshire. Further, a maze of statutory loopholes, known to few and understood by fewer, operate to allow for parallel large-dollar transactions of campaign financing which echo the freewheeling spending of corporations and individuals through nonprofit organizations and Super PACs that Citizens United and subsequent court cases allow. Republican Grant Bosse, a one-time congressional candidate and conservative political commentator, captured the sense of the New Hampshire campaign finance law landscape in 2010 in a line that became prophetic of what the next four years would hold, and what this article takes as its daunting subject: “Over the years, a series of legal cases and administrative rulings have poked so many holes into New Hampshire’s once strict campaign and expenditure limits that even Gov. John Lynch has been forced to ask the attorney general what’s allowed and what isn’t.”5 With these dynamics as a backdrop, this article examines two spheres of major change in New Hampshire campaign finance law in 2014 in an effort to shed some light on the dark heart of campaign finance law in the most political of states. First, a great deal of campaign finance law was made 2 As will be noted in this article, both the Attorney General and Secretary of State’s Offices have long called for the Legislature to resolve ambiguities in the campaign finance statute. An occasional commentator on campaign finance law and a former candidate for Congress, Grant Bosse, has decried New Hampshire’s campaign finance laws as “confused and irrelevant” and memorably opened one column tackling the thorny subject with the following line: “When a state’s campaign finance laws are too confusing for the governor to understand, it might be time to reform them.” See Grant Bosse, How did New Hampshire’s election laws become so confusing?, N.H. WATCHDOG (Sept. 26, 2010), http://newhampshire.watchdog.org/6946/how-did-new-hampshire%E2%80%99s-campaign-la ws-become-so-confusing/ [hereinafter Bosse, So Confusing?]; Grant Bosse, Election laws grow more confusing, N.H. WATCHDOG (Sept. 17, 2012), http://newhampshire.watchdog.org/6946/how-did-new-hampshire%E2%80%99s-campaign-la ws-become-so-confusing/ [hereinafter Bosse, More Confusing]. 3 Citizens United v. Fed. Election Comm’n, 558 U.S. 310 (2010). 4 See Political Nonprofits, OPENSECRETS.ORG CENTER FOR RESPONSIVE POL., https://www.opensecrets.org/outsidespending/nonprof_summ.php (last updated Mar. 9, 2015) (defining “dark money” as “[p]olitically active nonprofits—principally 501(c)(4)s and 501(c)(6)s—have become a major force in federal elections over the last three cycles. The term ‘dark money’ is often applied to this category of political spender because these groups do not have to disclose the sources of their funding—though a minority do disclose some or all of their donors, by choice or in response to specific circumstances.”). 5 Bosse, So Confusing?, supra note 2. 2015 HEART OF DARKNESS 229 during the contentious 2014 midterm election in the form of decision letters6 issued by the New Hampshire Attorney General’s office—the office charged by law with enforcement of campaign finance and election law.7 The significance of these administrative law decision letters—typically issued to a small circle of attorneys, candidates, and political leaders—cannot be underestimated in both understanding New Hampshire’s campaign finance law as it stands today, and the contribution of these quietly-issued letters to the general state of confusion, where such significant legal developments are often neither statutory nor even a matter of case precedent. Like weathered and tattered family histories, these decision letters are jealously guarded and handed down from campaign to campaign as the stuff of lore—and, for better or worse, the stuff of precedent. The frequency of and publicity surrounding high-profile campaign finance law complaints in the 2014 election have also established campaign finance complaints and litigation as a new arena for sophisticated electoral battle in New Hampshire, as this article will show.8 Second, this article reviews changes to New Hampshire state law, which have been made in reaction to the influx of Dark Money and related outside spending since 2010. The reforms contained in Senate Bill 120, proposed by Senator Jeb Bradley of Wolfeboro, the Senate Majority Leader,9 are summarized along with a discussion of post-Citizens United developments in New Hampshire that illustrate some of the perceived ills Senate Bill 120 is intended to remedy. Compliance with the new law is mixed, and rumblings of constitutional challenge are on the horizon, as this article will discuss. From the outset I note, for the purposes of full disclosure, that I served as counsel to Governor Maggie Hassan’s reelection campaign. I have endeavored to write with reasonable objectivity about major changes to campaign finance law that have recently evolved—many of which arose out of complaints against the campaign that I defended. Any hints of opinions that may peek between the lines are strictly the author’s own and not those of Maggie ’14 or the Friends of Maggie Hassan. 6 See infra Part II. 7 N.H. REV. STAT. ANN. § 7:6-c, I (2014); N.H. REV. STAT. ANN. § 664:18 (2014). 8 See infra Part II, B. 9 S.B. 120, 2013 Leg., Reg. Sess. (N.H. 2014), http://gencourt.state.nh.us/legislation/2014/SB0120.html. 230 UNIVERSITY OF NEW HAMPSHIRE LAW REVIEW Vol. 14, No. 2 I. CAMPAIGN FINANCE SUMMER